780.01 Definitions.
780.02 License required; application.
780.03 Basis for denial of license.
780.04 License fees and fines.
780.05 Tobacco retailer density.
780.06 Proximity to other licensed tobacco retailers.
780.07 Proximity of tobacco retail establishments to youth-oriented facilities.
780.08 Prohibited sales.
780.09 Compliance checks and inspections.
780.10 Exceptions and defenses.
780.11 Violations and administrative penalties.
780.12 Appeals.
780.13 Severability.
As used in this chapter:
(a) "Tobacco Retailer License" means a license issued by Lorain County Public Health, or another designee, for the sale of tobacco products. "Tobacco retailer license" and "license" are used interchangeably in this Ordinance and shall have the same meaning.
(b) "Licensee" means the holder of a valid license for the sale of tobacco products.
(c) "Person" means any natural person.
(d) "Public place" means any area to which the public is invited or in which the public is permitted, including, but not limited to, any right of way, mall or shopping center, park, playground and any other property owned by the City, and any school district or any park district.
(e) "Tobacco Retailer" means any person, partnership, joint venture, society, club, trustee, trust, association, organization, or corporation who owns, operates, or manages any tobacco retail establishment. Tobacco retailer does not mean the non-management employees of any tobacco retail establishment.
(f) "Tobacco Retail Establishment" means any place of business where tobacco products are available for sale, whether or not the business is open to the general public, whether the business is a "movable place of business" defined under this section, or a business or entity that maintains a private membership-based point of sale. The term includes but is not limited to grocery stores, tobacco product shops, kiosks, convenience stores, gasoline service stations, bars, country clubs, cigar lounges, and restaurants.
(g) "Self-service displays" means any display from which customers may select a tobacco product without assistance from the tobacco retailer or the tobacco retailer's agent or employee and without direct person-to-person transfer between the purchaser and the tobacco retailer or tobacco retailer's agent or employee. A tobacco vending machine is a form of self-service display.
(h) "Tobacco product" means
(1) Any product containing, made of, or derived from tobacco or nicotine, regardless of source, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, hookah, electronic hookah, snuff, shisha, or snus;
(2) Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine, including but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah; or
(3) Any component, part, or accessory, instrument, or paraphernalia of subsection (h)(1) or (2), whether or not any of these contain tobacco or nicotine or whether or not sold separately, including but not limited to, a mechanical heating element, battery, electronic circuit, liquids used in electronic smoking devices, filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.
(4) Tobacco product does not include any product that is a drug, device, or combination of products specifically authorized for smoking cessation purposes by the United States Food and Drug Administration, as those terms are defined or described in 21 U.S.C. 321 and 353(g).
(i) "Vending machine" includes any mechanical or electronic device designed to do both of the following:
(1) Receive a coin or bill, or token made for that purpose;
(2) In return for the insertion or deposit of a coin, bill or token, automatically dispenses any tobacco products.
(j) "Sale" includes delivery, barter, exchange, transfer or gift, or offer thereof, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.
(k) "Possess" or "Possession" means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.
(l) "Moveable Place of Business" means any form of business that is operated out of a kiosk, truck, van, automobile or other type of vehicle or transportable shelter and that is not a fixed address or other permanent type of structure licensed for over-the counter sales transactions.
(m) "Licensed Product" means the term that collectively refers to any tobacco product.
(n) "Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an Arm's Length Transaction.
(o) "Compliance Check" means the system Lorain County Public Health, or another designee, uses to investigate and ensure that those authorized to sell tobacco products are following and complying with the requirements of this ordinance. Compliance checks can involve the use of persons under the age of twenty-one (21) who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by Lorain County Public Health, or another designee, the City of Lorain, other units of government, or designated agencies for educational, research, and/or training purposes, or for investigating or enforcing federal, state, or local laws and regulations relating to tobacco products.
(p) "Delivery Sale" means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the counter sales transaction in a licensed retail establishment. Delivery sale includes, but is not limited to, the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up.
(q) "Youth-oriented facility" means any facility that caters to or provides services primarily intended for individuals under the age of twenty-one (21), or the individuals who regularly congregate or assemble at the establishment are predominately under the age of twenty-one (21). Youth- oriented facility includes, but is not limited to, public or private schools, a licensed day care facility or preschool, playgrounds, a library open to the public, recreation centers, and parks.
(Ord. 233-23. Passed 11-6-23.)
(a) License Required. No person, tobacco retailer, or tobacco retail establishment shall sell or offer to sell any tobacco product, whether by arm's length transactions or through vending machine sales, without first having obtained a license from Lorain County Public Health, the Lorain County Health Commissioner, or an authorized designee of Lorain County Public Health.
(b) Application. An application for a license to sell tobacco products must be made on a form provided by Lorain County Public Health, or another designee. The application must contain the full name of the applicant, the applicant's residential and business addresses and telephone numbers, the name of the business for which the license is sought, and any additional information Lorain County Public Health, or another designee, deems necessary. If Lorain County Public Health, the Lorain County Health Commissioner, or a specified designee determines that an application is incomplete, the application will be returned to the applicant with notice of the deficiency and the requisite information necessary to make the application complete.
(c) Term. The license term is one calendar year, beginning on March 1. In cases of applications for a new license submitted after March 1 of a given year and more than sixty (60) days before the following March 1, the Health Commissioner or the designee may issue a license for the remainder of the standard term period, but such license term will only extend to the following last day of February. The license fee remains the same regardless of the time of application. The license fee will not be prorated no matter the date an application is filed during the standard term period.
(d) Violation, Suspension, or Revocation. Any license issued may be suspended or revoked following the procedures set forth in this Chapter.
A tobacco retailer or retail establishment that violates any provision of this ordinance, or any other federal, state, or local law relating to tobacco product sales, shall be subject to the penalties prescribed in this Chapter and pursuant to Section 537.16 of the Lorain Code of Ordinances pertaining to the illegal distribution and sale of tobacco products. These penalties include civil fines and/or the prohibition of the sale of tobacco products.
A violation of other federal, state, and/or local laws relating to tobacco product sales shall be included in the determination and accrual of violations against a tobacco retail establishment's license as proscribed in this Chapter.
(e) Transfers.
(1) Including but not limited to Sections 780.03, 780.05, and 780.06, a licensee may assign such license to a third party, or permit a third party to assume such license in connection with an Arm's Length Transaction of the Licensee's business operations, whether by acquisition of all assets or merger or otherwise.
(2) In addition, Licensees may not assign or transfer the license granted to it, directly, or indirectly, whether voluntarily or involuntarily or by operation of law without the written consent of the Safety/Service Director of the City of Lorain, which shall not be unreasonably conditioned, delayed or withheld and upon confirmation that the Assignee does not meet any of the criteria of Section 780.03(a). Notice of the licensee's requested transfer shall also be sent in writing to the Lorain County Public Health, or another designee, at the time the requested transfer is made to the City of Lorain Safety/Service Director.
(f) Display. All tobacco retail licenses must be posted and displayed at all times in plain view of the general public or clientele of the tobacco retail establishment.
(g) Renewals. The renewal of a license issued under this ordinance shall be handled in the same manner as the original application. The request for a renewal must be made at least thirty (30) days, but no more than sixty (60) days, before the expiration of the current license on the last day of February.
(h) Issuance as Privilege and Not a Right. The issuance of a license is a privilege and does not entitle the license holder to an automatic renewal of the license.
(i) Instructional Program. Licensees must complete and ensure that all employees complete a training program on the legal requirements related to the sale of tobacco products and the possible consequences of license violations. Any training program must be pre-approved by Lorain County Public Health, the Lorain County Health Commissioner or its designee; shall include information that the sale of tobacco products to persons under twenty-one (21) years of age is illegal; the types of identification legally acceptable for proof of age; and that sales to persons under twenty-one (21) years of age shall subject the tobacco retailer and/or retail establishment to penalties. Licensees must maintain documentation demonstrating their compliance and must provide this documentation to Lorain County Public Health, or another designee, at the time of renewal, or whenever requested to do so during the license term.
(Ord. 233-23. Passed 11-6-23.)
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